The questions I pose revolve around who reports the abuse because it is important that we draw on the experiences of other jurisdictions and how to report - these are all critical questions that will need to be addressed - as well as penalties, defences and other matters. The jurisdictions of most relevance are Canada and Australia. I have looked at the eight provinces in Australia, the six provinces in Canada and virtually all of the American states. I have examined how we might learn from errors made in these jurisdictions.
The legislation proposes to place the Children First guidelines on a statutory basis, but it goes beyond this. It is important that we learn lessons from mistakes made in the past. The lessons to be learned can be seen in the context of the Ryan report which shows that there was a failure to uniformly and consistently implement the Children First guidelines. There has been an abject failure to implement the Children First guidelines, which is unsatisfactory from a child protection perspective. This will be addressed in the new legislation, under which schools, sport clubs, the church or organisations which children attend without their parents will have a legal duty to make sure they are a safe place for children. Such provision will also apply to named professionals.
I draw the committee's attention to a number of issues. I suggest emotional abuse should form part of the legislation for a number of reasons. The common core in other jurisdictions includes emotional abuse. It would be a retrograde step, therefore, not to include it, given that as far back as 1998 it was included in the Children (Reporting of Alleged Abuse) Act. The most insidious form of abuse is sometimes emotional abuse, which point is sometimes lost on us. I would be strongly supportive of its inclusion in the legislation. I outline in my paper why it should be included, although I am conscious of the difficulties involved in that its identification is complicated by the diversity of signs and symptoms a child may display. I suggest there are two options the committee might consider. First, it could consider an obligation to report emotional abuse without penalty and, second, that under the legislation designated persons be in a position to voluntarily make a report.
Looking at other jurisdictions, six of the eight provinces in Australia mandate the reporting of emotional abuse, the only exceptions being the Australian capital territory and Victoria where the reporting of emotional abuse is voluntary. Three of the provinces provide protection for a child exposed to violence within the home, which is very important. Four of the six provinces in Canada mandate the reporting of emotional abuse. The position in the United States is different in that in some states it is mandatory, while in some, it is not. I cite California as an example of a jurisdiction where the reporting of emotional abuse is not mandatory and New York as an example of a jurisdiction where it is mandatory. What I suggest to the committee for consideration is deferring including emotional abuse to a later stage if the committee is of the view that it would place an undue burden on the system.
In terms of the definition of sexual abuse I have a concern which revolves around the definition itself. The heads of the proposed Bill state that: "it is presumed that consensual sexual activity permitted by law is not sexual abuse". I was invited last week by the Royal College of Physicians to address a public meeting on the issue of consent. What we all want to make sure in this hugely important issue is that we prevent early sexual activity and adults exploiting children but we also want to make sure that young people are not deterred from accessing services for sexual health issues. That is hugely important and it is something that we need to take into account.
There were three important recent surveys to which the committee should be alive. The first was a pan-European survey in 43 jurisdictions. It dealt with the health behaviour of school-aged children. It found that approximately a third of the children engaged in sexual activity below the age of consent. That broadly mirrors a 2004 study in this jurisdiction. The most recent survey by the health promotion research centre in NUI Galway which was launched by the Minister, Deputy Reilly, what we found is that between the ages of 15 and 17, 27% of young people had been engaging in some type of sexual activity.
There is vulnerability and conflict in terms of providing counselling and services to sexually active young people below the age of consent. The conflict is that on the one hand there appears to be a professional duty to provide support to these young people and then there is an obligation to report the issues to both the HSE and the Garda. The legislation will have an impact in that at the moment there is discretion in terms of the reporting but in the future it will be a requirement. What I would urge the committee to do is to consider the provision in the withholding of information Bill, which provides for designated persons, or their equivalent, a defence of reasonable excuse in that context. What we all want to ensure is to defer early sexual activity but we do not want unsafe sexual behaviour. We do not want a situation whereby one has crisis pregnancy decision making without appropriate counselling. It is a real challenge but it is one to which the committee should be alive. That appears to me to be one of the consequences of the Bill.
There needs to be greater clarity in terms of the organisations covered under the Bill. We see that there are two particular heads of relevance – 6(2) and 6(3). I have cited an example of a swimming pool, which could fall under section 6(2)(ii) of the proposed Bill, which means that it would be covered by the legislation but, equally, it could fall under section 6(3)(f) where it could be regarded as a leisure facility. I suggest that in terms of the consumer we must be clear as to who is in or out in the context of the legislation. I am also profoundly concerned that individuals who have direct unsupervised access are not obliged to report under the Bill. I refer to personal tutors and dance teachers, for example. There needs to be uniformity in the approach that we adopt to the legislation.
I welcome the mandatory requirement for training in terms of organisations. That is hugely important because the legislation will be challenging in terms of its implementation. In terms of the annual audit I suggest that the legislation would allow for at least one external report to be procured as part of it. As a filtering system I am supportive of the designated officer because on the one hand it balances a need to protect from excessive reporting or over-reporting and on the other hand it does not reduce the protection afforded to children. The designated officer is a key part of the legislation. He or she will make the decision on whether to report. The guidance for the designated officer should be considered in secondary legislation to ensure maximum compliance.
If it is the case that the committee, and ultimately both Houses, proceed not to deal with the issue by means of secondary legislation; if the guidance is to take the form of guidelines then the primary legislation should make reference to the thresholds or grounds for making a report. For example, that designated officers would know or have reasonable grounds or cause for concern that arises during the course of their work. The minimum threshold should be set in the legislation and clarification of the criteria should be set out in the guidelines. That would be a useful template given that other jurisdictions such as Australia and Canada follow that route.
I would urge the committee to consider the experience in New South Wales. That is the first state-wide multidisciplinary online reporting guide tool. It is a very useful tool which will guide one as to whether information one meets the criteria to make a report. Having a similar tool available in this jurisdiction would assist the implementation of the legislation. What I have tried to come up with are practical mechanisms for making the legislation more consumer friendly. I would urge the committee to consider that as a suggestion.
Head 9(2)(b) is deficient in that it lacks detail. We need to provide further detail on the reporting of procedure in terms of the timeframe. Let us say, for example, one makes a report then that should be followed up within a period of 48 hours with a written report. An example of where that occurs is New York.
In terms of the organisational requirements on employees or volunteers, what I suggest is that if I report to a designated officer there should be some protection for the member within the organisation. I suggest that there should be a non-penalisation provision which exists in employment law in general. That should also apply to the designated officer. For persons who are statutorily required to report child abuse, in terms of head 11(3), organisations should provide designated officers with considerable training but such officers should also be alive to the responsibilities that are being foisted onto them. I will give an example from California where there is a requirement that one signs a statement to say that one understands the role, the obligations and the penalties that will flow from one's failure to comply with those obligations.
The legislation needs to put more of a focus on the organisation. Where an organisation fails to comply with legislation it should be guilty of an offence. This legislation is too top heavy on penalising an individual with the consequences not being as far reaching for an organisation. I cite as an example section 80(1) of the Safety, Health and Welfare at Work Act 2005. A lot of jurisprudence has built up around that section which foists responsibility both on the organisation and on the designated person. Also, there needs to be protection from liability for the designated officer who acts reasonably and in good faith. Again, in the comparative material, the eight provinces in Australia and the six provinces in Canada have this type of protection. It is hugely important. In footnote 11, I make reference to the provisions that the committee might consider as a mechanism to provide some degree of immunity to a designated officer who acts in good faith. We do not want a situation where people would become reluctant to become designated officers. We need to provide some level of protection in that regard.
Head 11(3) is vague in terms of stating that a designated officer will be guilty without reasonable excuse. My recommendation is that "reasonable excuse" should be defined. Does reasonable excuse include legal, medical or religious privilege or that it would lead to self-incrimination? These are some of the defences available in other jurisdictions.
One of the issues not addressed by the Bill, which should be addressed, is the offence of knowingly making a false report because that will have a huge impact on the system. In terms of the comparative material, the majority of provinces in Canada and Australia have such a provision. In New South Wales and in Queensland the penalty for knowingly making a false report is higher than the penalty for failing to report. My biggest concern with head 11 is head 11(3) because it is not clear what offence one is guilty of if one contravenes it. That matter must be clarified. Is the offence a failure to report or can it include the offence of knowingly making a false or misleading report? The offences must be identified and clearly stated. I suggest two - a failure to report and knowingly making a false or misleading report.
In terms of the role to be played by the Health Service Executive, it should be advisory. We need checks and balances; oversight of the legislation should be the responsibility of the Health Information and Quality Authority.
In terms of the guidelines to be laid down for the reporting of abuse, my recommendation is that it be done by means of regulations which I suggest should consider two issues - the criteria to be used and the procedures involved.
The final head to which I want to make reference deals with offences. This issue needs to be re-examined because the penalties must be reduced. When a provision of the Act is breached, the response must be proportionate. In terms of proportionality, a maximum penalty of five years is too great for a designated officer because we want to create a culture of compliance. In terms of the position in other jurisdictions, the maximum monetary penalty in Australia, for example, ranges between $5,000 and $22,000, while the maximum term of imprisonment is six months. In New South Wales the criminal penalty was removed in 2010.
The monetary penalties in Canada range between $2,000 and $50,000. The upper figure of $50,000 applies in two of the provinces, Ontario and Manitoba. Canada is an interesting example in that while most jurisdictions allow for a jail sentence for non-reporting, the usual penalty is a fine, reflecting the educational intent. That is what this legislation should be about - creating a culture and a safe environment for children, rather than penalising individuals. Every jurisdiction in Canada deals with the offence at a local level. It is a summary offence dealt with in the provincial courts which similar to the District Court here.
In the United States there is the possibility of a fine. The term of imprisonment ranges from five days to five years, with Florida being the exception if one is found guilty of failing to report a household member. There is a greater penalty in the case of a second offence, as reflected generally in the legislation in California.
My final point is that there must be a much more structured approach to penalties. I recommend that we divide them into two sub-categories, the first of which is that one acts negligently before being liable to summary prosecution. The penalty would be a fine or imprisonment for one year. The second is that one acts with reckless disregard, in which case it should be an indictable offence, for which the penalty would be a fine and-or two years imprisonment. I suggest knowingly filing a false or misleading report should form part of the offences. It should be a summary offence, for which the penalty should be a fine and-or imprisonment for one year. Reformed management should give the HSE capacity in this regard.
I listened with interest to Mr. Jeyes's presentation. There will be a dedicated agency with a dedicated budget. I hope the Children First Bill will create a culture of reporting which will provide clarity and for accountability which is absent from the child protection system. We have had inquiry after inquiry and what the public wants is some level of accountability, which will happen.
I support the mandatory reporting provisions because they uphold the rights of all children, but mandatory reporting is not the panacea. It must occur alongside the provision of increased resources, reform and training. The challenge for Ireland is to learn from the past and the experiences of those adults who recount their experiences of stolen childhoods. Implementing the legislation is a necessary starting point in building a robust child protection system.